Federal labor groups have frequently accused agencies of engaging in bad faith “box-checking” collective bargaining negotiations, in an effort to fast track proposals to an all-Republican board.
An appropriations bill approved by the House last week includes language that would prevent a board of political appointees from adjudicating labor-management disputes that arise during collective bargaining negotiations.
A provision of the fiscal 2020 Financial Services and General Government appropriations bill (H.R. 3351), which the House passed by a 224-196 vote, would block agencies from implementing any collective bargaining agreement that has not been “mutually and voluntarily agreed to by all parties” or was not the result of binding arbitration. The ban is retroactive to April 30, 2019.
If enacted, the bill would prevent agencies from unilaterally implementing new union contracts. Last week, the Environmental Protection Agency informed the American Federation of Government Employees that it would skip negotiations and impose a new contract later this month over the union’s objections. EPA said it took the step, despite the availability of other legal remedies, because the agency and the union could not reach agreement on ground rules for negotiations.
The provision also would prevent the implementation of contracts as mandated by the Federal Service Impasses Panel, which makes decisions on contested contract proposals if labor and management cannot reach an agreement.
The impasses panel recently has overwhelmingly sided with management in disputes between the Health and Human Services Department and the National Treasury Employees Union, and between the Social Security Administration and AFGE. HHS had informed NTEU that it planned to implement its new contract on May 2, just after the retroactivity date listed in the appropriations bill.
A Democratic aide to the House Appropriations Committee told Government Executive that the provision is the result of concerns that agencies have been engaging in bad-faith bargaining in an effort to reach the impasses panel, which the aide described as a “partisan” board, as quickly as possible. Unlike other adjudicative bodies that deal with employee-management disputes, such as the Federal Labor Relations Authority and the Merit Systems Protections Board, there are no requirements that there be minority party representation. Thus, the impasses panel is made up entirely of Republican appointees.
“There have been a series of concerns where federal agencies, in unions’ and in our opinions, have engaged in non-good faith bargaining to get to impasse,” the aide said. “So it goes to the FSIP, that’s 100% composed of Republican members, so their decisions have not been in union favor. So agencies are just imposing unilaterally determined contracts on the unions with the blessing of the FSIP, which is pretty partisan at this point.”
Within the last two years, unions and Democratic lawmakers have increasingly accused agency management of engaging in “surface” bargaining—“checking boxes” in the process without meaningfully engaging in negotiations in order to reach the impasses panel.
Under current law, when an agency and a federal employee union reach an impasse in collective bargaining negotiations, they must go to the Federal Mediation and Conciliation Service to work out their differences. If they cannot resolve their dispute, the parties have two options: they can request the intervention of the impasses panel, or they can submit to binding arbitration by a neutral third party, although the parameters must be approved by the impasses panel.
If the appropriations bill’s provision becomes law, contract negotiators effectively would be required to go to arbitration once an impasse is declared. Federal unions applauded the language’s inclusion in the bill.
“It is unfortunate that this protection is even necessary, but given the administration’s intent to undermine collective bargaining, Congress is wise to reaffirm its commitment to employee rights,” said NTEU National President Tony Reardon in a statement. “This provision, if it becomes law, would confirm NTEU’s position that HHS cannot impose contract articles that have not been properly negotiated and voluntarily agreed to by both parties. It would also keep in place the existing NTEU-HHS contract, and any other existing contract, until a new one is properly negotiated and approved or ordered after binding arbitration.”
“We believe the provision is a necessary check to ensure that agencies follow the law,” AFGE said in a statement. “We just want fair bargaining.”
The White House last week announced that President Trump would veto the appropriations bill if it reached his desk, citing this provision among its objections.
“By stipulating that a CBA shall remain in full force and effect until a new bargaining agreement is reached through mutual consent, this provision effectively traps agencies and forces them to remain party to agreements that do not advance the effectiveness or efficiency of the agency’s mission,” wrote the Office of Management and Budget.
This story has been updated to clarify the rationale for EPA's decision to impose a new labor contract over union objections.